n this world of Twitter trolls, YouTube celebrities, andInstagram models, social media has become perhaps themost important platform for individual speech. It’s unsur-

prising, then, that an increasing number of clients seekadvice on the potential legal risks of taking employmentaction in response to employee speech on social media.

Any discussion of individual speech calls to mind theFirst Amendment. Despite the public’s relative familiaritywith the First Amendment, it is often overlooked that theConstitution only protects citizens from the government, butnot from private parties. Government employers, then, are

332 Texas Bar Journal • May 2018 texasbar.com

Employee Free SpeechNavigating potential legal risks on social media.

BY ANNA MACKIN

I limited by the First Amendment, while private employersare not.

Nevertheless, federal and state employment laws providesome protections for private employees, and these protectionscan extend to certain expressive activity. These include, forexample, laws prohibiting discrimination and harassment andlaws protecting workers’ rights to unionize (or not). So, tothe extent employees engage in these protected activitiesthrough speech, that speech is protected.

Thus, the threshold inquiry is whether your client is apublic or private employer.

FIRST AMENDMENT LAW

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Public EmployersWhile the First Amendment1 binds both state2 and federal

governments, its protective reach does not extend to allgovernment employee speech. Instead, government employ-ers can limit employee speech when necessary to effectivelyand efficiently carry out their public functions.

The Supreme Court established the test for whether gov-ernment employee speech is subject to First Amendmentprotection in Pickering v. Board of Education.3 The “Pickeringbalancing test” first asks “whether the public employee spokeas a citizen on a matter of public concern.”4 Unless this firstprong is satisfied, “the employee has no First Amendment causeof action based on the employer’s reaction to the speech.”5

But if the employee demonstrates that they were speakingas a citizen on a matter of public concern, then the burdenshifts to the governmental employer to present “an adequatejustification for treating the employee differently from anyother member of the general public.”6 Public employee speechas a citizen on a matter of public concern “may be restrictedonly if ‘the interest of the state, as an employer, in promotingthe efficiency of the public services it performs through itsemployees’ outweighs ‘the interests of the [employee], as acitizen, in commenting upon matters of public concern.’”7

The court’s “precedent in the public-employee contexttherefore establishes two main principles: First, althoughgovernment employees do not lose their constitutional rightswhen they accept their positions, those rights must bebalanced against the realities of the employment context.Second, in striking the appropriate balance,” courts “con-sider the basic concerns of the relevant constitutional provi-sion, or whether the claimed right can more readily give wayto the requirements of the government as employer.”8

The court explored this standard in Garcetti v. Ceballos,where a deputy district attorney wrote a memo attacking thetruth of an affidavit that his office used in a prosecution andclaimed that he suffered adverse employment action as aresult. Applying the first prong of the Pickering balancingtest, Garcetti held that the deputy DA’s critical memorandumwas not entitled to First Amendment protection.

Ceballos was, the court reasoned, speaking as an assistantDA when he criticized the affidavit, and not as a citizen.Having made this determination, the court found it immaterialwhether the veracity of the affidavit was a matter of publicconcern. The court acknowledged that government “employeesretain the prospect of constitutional protection for theircontributions to the civic discourse. This prospect of protec-tion, however, does not invest them with a right to performtheir jobs however they see fit.”9 In other words, government“employee speech is unprotected if it is not on a matter ofpublic concern (or is pursuant to an employee’s job duties)[.]”10

Application of the Pickering balancing test to online speechhas not, to date, added many wrinkles to the analysis. Atleast one U.S. 5th Circuit Court of Appeals case bodes wellfor government employers (or, at the very least, governmentemployers engaged in law enforcement). In Graziosi v. Cityof Greenville, a sergeant was terminated after she criticizedher superior officer on the mayor’s public Facebook page for

not sending a representative to a fallen officer’s funeral.11

The 5th Circuit balanced the city’s substantial interestsin maintaining discipline and preventing insubordinationwithin its police department against the sergeant’s interestin airing her particular criticism on Facebook, and held thatthe First Amendment did not protect the officer’s speech. Itnoted that the topic was of minimal public concern, butinstead arose in the context of an employee’s disagreementwith her public employer’s policy choice.

The court reasoned that this represented a comparativelyminimal interest in speaking on a matter of public concern.Graziosi did, however, emphasize the need for close workingrelationships and harmony among law enforcement officers.This principle might be more limited in a context where thegovernment employer’s public function does not involveimmediate danger to life and limb.

State law can impose additional protections on publicemployee speech. In Texas, the Whistleblower Act12 prohibitsadverse employment action against state and local governmentemployees who make a good faith report of a violation oflaw by their employer or a coworker to an appropriate lawenforcement authority.

Prevailing on a claim under Texas’ Whistleblower Actrequires a considerable showing. Indeed, it is insufficient for aplaintiff to make a good faith report of a violation of law. To beprotected under the act, the employee must also have a goodfaith belief that the entity reported to has authority to enforcethe law allegedly being violated, or to investigate or prose-cute suspected criminal acts.13

In short, while individuals have a constitutional right tospeak, they have no constitutional right to public employment.

Private EmployersIf your client is a private employer, the First Amendment

does not restrict its behavior.15 There are, however, several lawsthat prohibit adverse employment action by private employersin connection with an employee’s expressive conduct. To beclear—these prohibitions do not arise out of the FirstAmendment. They simply happen to protect speech.16

Chief among these is the National Labor Relations Act,17

which protects employee discussions about the terms andconditions of their employment—for example, wages,18 hours,and benefits.19 Importantly, the act only prevents employersfrom interfering with this type of employee speech when ittakes place “in concert with” other employees.20 An individual’scomplaints about his or her own wages, particular hours, orspecific benefit package are not protected, as these are notmade “in concert with” other employees.21 It is also impor-tant to note that government employers are exempt fromthe National Labor Relations Board’s jurisdiction.22

Communications protected under the National LaborRelations Act are just as protected when they take place onsocial media as they are in any other context. The NLRB hasbeen relatively permissive in defining concerted activity onFacebook—even “liking” another employee’s post about com-mon working conditions is considered acting “in concertwith” another employee.23

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All employers—public and private—also have a duty totake reasonable steps to prevent harassment, discrimination, andretaliation. Thus, employee social media posts complainingabout these activities are generally protected.24 Similarly, oncean employer is aware of potential harassment, discrimination,or retaliation by one employee against another, the employerhas a duty under Title VII of the Civil Rights Act to takereasonable steps to investigate and mitigate that behavior.This applies equally in the online context. Thus, where oneemployee engages in harassing or discriminatory speechagainst another—including online—the employer mustinvestigate and remediate as necessary.

Both public and private employers can minimize litigationrisk by implementing a specific, carefully crafted socialmedia policy, which can specify limitations on employee useof company time and resources (including equipment) foruse of social media. The policy can also limit discussion ofthe employer, so long as those limits do not proscribe activitythat is protected under other laws. Public employers shouldbe particularly cautious in this respect, and should ensurethat any such limitations are necessary for the employer’sefficient provision of public services. TBJ

Notes1. U.S. Const. amend. I.2. U.S. Const. amend. XIV.3. Pickering v. Board of Education, 391 U.S. 563 (1968).

4. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering, 391 U.S. at 568;Connick v. Myers, 461 U.S. 138 (1983)).

5. Id.6. Id.7. Harris v. Quinn, 134 S. Ct. 2618, 2642 (2014) (citation omitted).8. Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 599-600 (2008).9. Garcetti at 422.10. Harris v. Quinn, 134 S. Ct. at 2642. 11. Graziosi v. City of Greenville, 775 F.3d 731, 733, 741 (5th Cir. 2015).12. Tex. Gov’t Code § 554.002(a). 13. Id. § 554.002(b)(1); University of Texas Southwestern Medical Center at Dallas v.

Gentilello, 398 S.W.3d 680, 682 (Tex. 2013). 14. E.g., Bradley v. Lockheed Martin Corp., 275 F. App’x. 396, 397 (5th Cir. 2008) (First

Amendment claims cannot be maintained against private employers.). 15. As such, this is not an exhaustive list of all expressive conduct (on social media, or

elsewhere) for which private employers cannot take adverse employment action.16. 29 U.S.C. §§ 151-169.17. NLRB v. Brookshire Grocery Co., 919 F.2d 359, 362 (5th Cir. 1990). 18. See 29 U.S.C. § 157. 19. Id.; see also Hispanics United of Buffalo, Inc., 2012 N.L.R.B. LEXIS 852 (2012).20. Meyers Industries Inc., 268 N.L.R.B. 493, 505 (1984).21. 29 U.S.C. § 152(2)-(3).22. Three D, LLC d/b/a Triple Play, 361 N.L.R.B. No. 31 (2014).23. E.g., 42 U.S.C. § 2000e.

ANNA MACKIN is an assistant attorney general in the General Litigation Division ofthe Texas Office of the Attorney General. Her practice focuses on con-stitutional and civil rights litigation, with an emphasis on election lawand the First Amendment. Mackin is a graduate of the University ofTexas at Austin and Notre Dame Law School.

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